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This argument has been recovered by Mr. Spedding, and is here translated from the Law French in which it is preserved, Lansd. MSS. 1121. It seems to be a complete and careful report, but not a revised one, and I have had sometimes to fill up or correct an obscure or mutilated sentence conjecturally.
The case itself is fully reported by Coke, who argued on the same side with Bacon, and by Anderson and Popham, who gave judgment on that same side ; and Mr. Hargrave, in his MS. notes on Popham's Reports in the British Museum, mentions an unedited report by Owen, also one of the majority of the judges, in the Library of Lincoln's Inn.
I believe Bacon does not exaggerate the importance attached to the case and decision at the time, in his frequent mention of it in the Reading; and the discussion which the whole doctrine of uses there met with must unquestionably have helped “ to reduce it to a true and sound exposition :" yet it seems equally clear that “the many doubts and perplexed questions which had since arisen, and were not yet resolved” at the time of the Reading, have ended by restricting the authority of the decision to a very small part of the ground over which it was conceived to extend, and in fact overruling the doctrine of the majority, at least, of the judges who decided in favour of the defendunts.
For though it be true that some of the judges in that majority did point out that the particular limitations in Chudleigh's settlement were such as might exist at Common Law, and that in such cases they would have been destroyed in the event which happenerl, yet they mostly went on the doctrine of the scintilla juris, which applied equally to springing and shifting uses as to tho:e in the nature of contingent remainders, and would have made them all equally destructible before vesting; and some of them, and some also of those who did not go upon
this ground, seem to have been prepared to hold (as Coke inclined) that all limitations unknown to the Common Law should, after the statute, be held void in the creation.
In Bacon's argument, which was in Easter Term, 1594, and was the last delivered, there is no notice whatever of this Common Law character of these limitations: and the inference one would naturally draw from this seems to me confirmed by Coke's report of the argument (after judgment delivered), and by other notices,-viz. that the observation came from the judges themselves.
There are passages in this argument which illustrate the Reading, though we must, of course, be cautious of confounding the arguments of the advocate with the subsequent conclusions of the expositor.
THE ARGUMENT OF FRANCIS BACON.
He states the case to be that, Sir Richard Chidley, being seised in fee of a manor whereof the land in question was parcel, infeoffed Sir G. S. and others to the use of himself and the heirs of his body by sundry wives, remainder to the use of the feoffees and their heirs during the life of Christopher Chidley his eldest son, remainder in tail to the first, second, third, and so to the tenth son of the said Chr. Chidley, remainder to the other sons of the said Richard then living, viz. to Thomas, to Oliver, and Nicholas, the remainder to his own right heirs in fee: and then died in the lifetime of his fcoffees : and so, there being an intermediate remainder between the estate of the fcoffees for the life of Chr. and the remainder in fee which was in Chr., the feoffees infeoffed the said Chr., so excluded from the limitations. Afterwards Chr. has issue, Streightley Chidley and John Chidley, and the said Chr. infeoffs Sir John Chichester, who infeoffs Philip Chichester, under whom the defendant claims. Streightly died without issue; John Chidley enters and grants a lease to the plaintiff, on whom the defendant re-enters; and the plaintiff brings trespass. And so the title is between the assignce of Christopher, who makes title under? the feoffees in disaffirmance of the contingent use, and the issue of John Chidley, who claims by the contingent use. And the simple question is but this: If the possession be estranged from the first privity at the time when the contingent use ought to arise, and all possibility gone of reviving it by the return of the feoffees (who have granted away their future right included in the livery), whether the springing use be not utterly extinct. And he held that it was.
The case being of great importance, touching the Queen in
I Que connaye del fcoffees.